Heard Sri H.N. Pandey, learned counsel for the petitioner, Sri R.N. Singh, learned Senior Advocate assisted by Sri Vinod Kumar Singh, Advocate for respondent no.4 and learned Standing Counsel for State-respondents.
The present writ petition has been filed for following reliefs:
"(I) A writ, order or direction in the nature of certiorari calling for the records of the case and quashing the impugned order of the Zila Basic Shiksha Adhikari, Mathura dated 23-10-2002 (approving the selection and appointment of Respondent no.4), letter of appointment dated 24-10-2002 (Annexure-5) issued by Manager of the institution to Respondent no.4 appointing him as Head Master of the institution and the entire selection proceedings in respect of the post of Head Master of Shri Narain Das Vidya Mandir, Raipura, Jat, Mathura, in which Respondent no. 4 has been alleged to be selected.
(II) A writ, order or direction in the nature of mandamus directing the concerned respondent to hold fresh selection against the post of Head Master of Shri Narain Das Vidya Mandir, Raipura, Jat, Mathura in accordance with law.
(III) Any other writ, order or direction to which this Hon'ble Court may deem fit and proper in the nature and circumstances of the case.
(IV) Award the cost of the petition.
(V) To issue a suitable Writ order or direction including a writ in the nature of Quo-Warranto declaring the Respondent no.4 is not entitled to hold post office of the Head Master of the Institution and his appointment against the said post is nullity.
(VI) To issue a suitable Writ order or direction including a writ in the nature of Mandamus directing the concerned Respondents and the State Authorities to recover the amount of money paid to Respondent no.4 as salary from Respondent no.4 and other Respondents and Authorities responsible for making payment of salary to Respondent No. 4."
This Court on 25th November, 2010 had noticed two preliminary objections, which were raised by Sri V.K. Singh, learned counsel for respondent no.4 as well as reply submitted thereto.
The Court may, therefore, deal with the preliminary objections raised first.
On behalf of respondent no.4 it is contended that the petitioner has no locus to maintain the present writ petition in view of the fact that he was not a candidate for the post and therefore, writ petition filed by him ought not be entertained. For the purpose, a Division Bench Judgement of this Court dated 9th November, 2009 passed in Special Appeal (Defective) No. 1172 of 2009 (Km. Vijeta Tripathi vs. State of U.P. & others) has been relied upon.
Since the judgement in the special appeal is short judgement, it would be appropriate to reproduce the same herein below:
"Respondent no. 7 - appellant, aggrieved by order dated 18.09.2009 passed by learned Single Judge in Civil Misc. Writ Petition No. 50482 of 2009, has preferred this appeal under Rule 5 Chapter VIII of the Allahabad High Court Rules, 1952.
The order impugned looks innocuous as the writ petition has been disposed of with a direction to the Director of Education to examine the matter under Section 16-E (10) of the Intermediate Education Act.
Mr. Ashok Khare, Senior Advocate, appearing on behalf of the appellant, submits that as the writ petitioner - respondent no.7 (hereinafter referred to as the 'writ petitioner'), was not a claimant to the posts held by the appellant as also respondent nos. 4, 5 and 6, the grievance raised by him about their illegal appointments does not give him a personal cause so as to file a writ petition cognizable by a Single Judge. He submits that in case the writ petitioner attempted to question their appointments, he should have filed a public interest litigation and that too was not fit to be entertained, as the issue relates to the service matter."
Be that as it may, as the writ petitioner was not a candidate for appointment, the writ petition filed by him ought not to have been entertained by the learned Single Judge on this ground alone.
Accordingly, we set aside the order dated 18.09.2009 passed by the learned Single Judge, giving liberty to the writ petitioner to take recourse to any other proceeding permissible in law.
In the result, appeal is allowed with the observation aforesaid."
From a reading of the aforesaid Division Bench judgement, it is apparently clear that the Court held that since the writ petitioner was not a candidate for the post, the writ petition ought not to have been entertained. This observation has to be read in the background of the facts noticed in first three paragraphs of the judgement, wherein the Court has recorded the contentions raised on behalf of the appellant to the effect that the writ petitioner was not a claimant to the post. It is in this background that the Court held that petition at her behalf ought not to have been entertained.
In the facts of the present case, it has been amply demonstrated before this Court that the petitioner is a claimant for the post in question. According to the petitioner, the vacancy was not advertised in accordance with Rule 7 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as the "Rules, 1978") and therefore, he could not submit his application. This contention of the petitioner has been replied on behalf of respondent no.4 by contending that the petitioner himself made an application in writing in response to the advertisement publihsed. It, therefore, does not lie in the mouth of the respondent no.4 to contend that the petitioner was not a claimant for the post in question. Consequently, the first preliminary objection raised on behalf of the petitioner is rejected.
The second preliminary objection raised on behalf of respondent no.4 is that the petitioner has not approached this Court with clean hands inasmuch as he had made an application for the post in his own hand writing, but wrongly stated in the present writ petition that he was not aware of the advertisement. This stand is false, inasmuch as if the petitioner was not aware of the advertisement, there was no occasion for him to make an application.
The objection so raised on behalf of respondent no.4 is opposed by learned counsel for the petitioner by contending that the alleged application is not in his own handwriting and it is prepared document only for the purposes of frustrating the present proceedings. The application is stated to be dated 15th July, 2002 when the last date for making of the application under the alleged advertisement was 25th June, 2002.
This Court is not required to enter into the disputed issues of fact qua making of the application by the petitioner, inasmuch as it may ultimately require opinion of Hand Writing Expert and other evidence to be considered. In the opinion of the Court, it would be appropriate, to only record that in the facts of he present case, this Court is satisfied that the petitioner is not guilty of deliberately filing a false affidavit before this Court or of not approaching this Court with clean hands. Consequently, the second preliminary objection raised on behalf of respondent no.4 is also rejected.
One additional preliminary objection has been raised on behalf of respondent no.4 today i.e. the present writ petition suffers from laches, inasmuch as selection had taken place in the year 2002 and the the present writ petition has been field in the year 2003. He has placed reliance upon the judgment of a learned Single Judge dated 22nd November, 2010 passed in Civil Misc. Writ Petition No. 38703 of 2006 (Guru Narain Singh vs. State of U.P. & others).
In order to deal with the aforesaid objection, it may be recorded that according to respondent no.4, his appointment as headmaster of the institution was approved by the Basic Shiksha Adhikari on 23rd October, 2002 and he joined the institution on 1st November, 2002. The writ petition has been presented before this Court on 14th October, 2003 with the allegation that the petitioner was earlier given to understand that the respondent no.4 had been appointed by way of transfer and it is only when he was informed that such appointment has been made by direct recruitment, that the present writ petition has been filed.
Be that as it may, this Court holds that the petitioner cannot be said to have slept over his rights nor can it be said that the writ petition suffers from unexplained laches, so as to defeat his right under Article 226 of the Constitution of India. So far as the judgement of learned Single Judge dated 22nd November, 2010 referred to above is concerned, this Court may record that the learned Single Judge had held in that case that there was undue delay and laches of more than two and half years. Reference paragraph-7 of the judgement of learned Single Judge dated 22nd November, 2010 and therefore the writ petition was not entertained.
The facts of the present case are clearly distinguishable and therefore, the judgement is of no help.
NOW ON THE MERITS OF THE CASE Sri Narain Das Vidya Mandir, Raipura Jat, District Mathura is a recognized and aided junior high school. The provisions of Rules, 1978 are admittedly applicable to the teachers of the said institution. Petitioner before this Court claims to be working in the said institution since 1974 and is stated to be possessed of the following teaching qualifications (a) Bachelor of Arts and (b) Basic Teaching Certificate Course. The vacancy on the post of headmaster of the institution was caused on 30th June, 1997 with the retirement of Gopi Chandra Shashtri, the regular headmaster. It is in respect of this vacancy and the appointment made against the same of respondent no.4 that the present writ petition has been filed. In the writ petition it has been stated that under Rule 7 of Rules, 1978, the vacancy is to be advertised in two newspapers, one having adequate circulation throughout the State and other at the local level. Since the advertisement in terms of Rule 7 of Rules, 1978 was not made, the petitioner could not apply. Subsequently, it was brought to his notice that the respondent no.4 has been appointed in the institution by direct recruitment with the approval of the Basic Shiksha Adhikari. He has, therefore, approached this Court with the prayers as quoted herein above.
It is further contended that no selection infact has taken place in the institution and only papers have been manufactured suggesting the selection of respondent no.4. Lastly it is submitted that the respondent no.4 was not possessed of the prescribed minimum qualifications as per Rule 4 of Rules, 1978 and was therefore, ineligible to be appointed as headmaster in the said institution. It is explained that respondent no.4 had never worked in any recognised junior high school and therefore, he has no teaching experience as required under Rule 4 (2) (c) of Rules, 1978. The certificate relied upon by respondent no.4 for establishing his teaching experience qua working in an recognised junior high school is only a waste paper, inasmuch as said respondent no.4 has failed to establish that he was ever appointed in the recognised junior high school with the approval of the Basic Shiksha Adhikari, which is a condition precedent for any valid appointment in a recognised junior high school. It is further stated that respondent no.4 has to his credit a degree of B.Ed. only, when under Rule 4 (2) he has to have a training qualification such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate etc. Learned counsel for the petitioner submits that the legal position with regard to B.Ed. degree being not equivalent to Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate etc., has already been settled by the Hon'ble Supreme Court of India in the case of Mohd. Sartaj vs. State of U.P. & Ors., reported in 2006 (1) JT 331. It has been laid down that essential qualifications for recruitment to the post are to be seen/ satisfied on the date of recruitment and not on any later point of time. Reference is made to the judgment of the Hon'ble Supreme Court of India in the case of Pramod Kumar vs. U.P. Secondary Education Services Commission & Ors., reported in 2008 (4) ALJ 207, wherein the judgement in the case of Mohd. Sartaj (Supra) has been approved and it has been further held that essential qualifications for recruitment to a post, if not satisfied at the time of recruitment, the same cannot be condoned. Such acts cannot be rectified, appointment contrary to the Statute/statutory Rules would be void and illegality, in that regard, cannot be regularized.
Faced with the aforesaid contention, Sri R.N. Singh, learned Senior Advocate appearing for respondent no.4 contends that petitioner after making the application did not participate in the selection and therefore, it is not open for him to challenge the selection. It is then contended that teaching experience certificate produced by respondent no.4 is from a recognized junior high school, which has rightly been held to be valid for the purposes of satisfying the requirement of Section 4 (2) (c) of Rules, 1978. With regard to the academic qualifications, legal proposition as laid down by the Hon'ble Supreme Court in the case of Mohd. Sartaj (Supra) could not be disputed. However, it is explained that by subsequent amendment made in 2008, a degree of B.Ed. has now been included as valid teachers training course under Rule 4 (2) (b) and therefore, as on date respondent no.4 is qualified for the post in question. It is further stated that the original records pertaining to the selection have already been examined by this Court after summoning the same from the office of the Basic Shiksha Adhikari including the advertisement and therefore, this Court may not interfere in the writ petition.
I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present writ petition.
In terms of the order dated, 25th November, 2010, the Court has examined the original records as produced by the Basic Shiksha Adhikari. It may be recorded that the vacancy was advertised in two newspapers published from Agra, namely, Aaj and Swaraj Time. There is no material, which could substantiate that Swaraj Time is local newspaper, so far as the city of Mathura is concerned. The notice was sent to the applicants by registered post only on 23rd September, 2002, when the interview was fixed for 29th September, 2002 i.e. just six days prior to the date of interview. From the interview-sheet this Court finds that as against 13 applicants, candidates empanelled at serial nos. 1,8,9 and 12 did not have any teaching experience, candidates empanelled at serial nos. 2,3 and 4 were shown as absent, candidate empanelled at serial no.6 was shown as under-age. Against the name of the petitioner, at serial no.13, it is recorded stated that application has been received by hand, but he did not participate in the selection. It is, thus, clear that only the candidates empanelled at serial nos. 5,7, 10 and 11 i.e. in all four candidates were found eligible and all these four candidates possessed a degree of B.Ed only as teaching qualification. Therefore, no candidate was eligible for being considered for appointment on the date of selection, qua the post as per Rules, 1978.
The Basic Shiksha Adhikari has been conferred the power of approval with an intent to ensure that the statutory rules are complied. Under the order of approval in this case, no relevant facts have been noticed.
This Court may only refer to Section 10 (5) of Rules, 1978, which deals with the power of the Basic Shiksha Adhikari, after receipt of the recommendations of the on the recommendations of Selection Committee qua appointment on the post of teachers under Rules, 1978. The same reads as follows:
"10. Procedure for selection.---
.............
(5) (i) if the District Basic Education Officer is satisfied that----
(a) the candidates recommended by the Selection Committee possess the minimum qualifications prescribed for the post;
(b) the procedure laid down in these rules for the selection of Headmaster or Assistant Teacher, as the case may be, has been followed he shall accord approval to the recommendations made by the Selection Committee and shall communicate his decision to the Management within two weeks from the date or receipt of the papers under clause (4).
(ii) If the District Basic Education Officer is not satisfied as aforesaid, he shall return the papers to the Management with the direction that the matter shall be reconsidered by the Selection Committee.
(iii) If the District Basic Education Officer does not communicate his decision within one month from the date of receipt of the papers under clause (4), he shall be deemed to have accorded approval to the recommendations made by the Selection Committee."
From reading of Section 10 (5) it is clear that Rule making authority has taken care to provide that the Basic Shiksha Adhikari has to satisfy himself that (a) the candidate recommended by the Selection committee satisfies the minimum qualifications prescribed for the post, (b) procedure prescribed has been followed, (c) and it is only then that he is required to take decision for approving the appointment , otherwise, he has to return the papers to the Management for fresh selections.
Entire selections would fall atomically on the ground that none of the candidates, on the date of selection, was possessed of the minimum prescribed qualifications i.e. teaching qualification for being considered for appointment for the post of headmaster as per Rules, 1978.
This Court may also deal with the issue with regard to the teaching experience claimed by respondent no.4. From the original records pertaining to the selection, this Court finds that there is a teaching experience certificate, issued by the Principal of Sri Gajadhar Prasad Junior High School, Rui Ki Mandi, Shahganj, Agra, which records that respondent no.4 has been working in the said institution since 1st July, 1998 till May, 2002 and that he was on leave without pay between November, 2000 to July, 2001. Before this Court respondent no.4 could not demonstrate that his alleged appointment in Gajadhar Prasad Junior High School, which was a recognised junior high school was made with the approval of the Basic Shiksha Adhikari. Rule 10 of Rules, 1978 clarifies that no appointment in a recognised junior high school on the post of a teacher can be made except without prior approval of the Basic Shiksha Adhikari.
It is held that any appointment made without there being any order of approval in writing would be a nullity. This Court, therefore, has no hesitation to hold that the teaching experience pleaded by respondent no.4 on the strength of such illegal appointment is no experience in the eyes of law.
Therefore, it is recorded that (a) the respondent no.4 was not possessed of the academic qualifications prescribed for the post, (b) respondent no.4 was not possessed of the teaching experience as required under Rule 4 (2) (c) of Rules, 1978. On both the grounds he was completely ineligible to be appointed in the institution.
The Hon'ble Supreme Court of India in the case of Mohd. Sartaj and Pramod Kumar (Supra) has explained that all qualifications are to be seen on the date of appointment as per the rules applicable and if any appointment has been made in teeth of the statutory provisions, of a candidate not possessed of the required qualifications, such appointment would be void and cannot be regularised at latter point of time. Any length of service on the strength of such illegal appointment will not have the effect of curing the defect in the appointment.
This Court, therefore, holds that respondent no.4 was ineligible to be appointed on the date, he was recommended for the post and had been offered appointment as headmaster.
In support of the conclusion recorded, reference is made to the judgements of this Court in the following cases:
(a) Committee of management vs. State of U.P. & others, reported in (2009) 1 UPLBEC 381,
(b) Arun Kumar Chaturvedi vs. State of U.P. & others, reported in 2009 (5) ESC 3573 (All.),
(c) Sanjay Kumar Tyagi vs. State of U.P. & others; reported in 2005 (1) AWC 924,
(d) Akhilesh Kumar Pandey & Anr. vs. State of U.P. & others; Special Appeal No. 1306 of 2009 decided on 4th September, 2009.
(e) Smt. Gyanwati Devi vs. State of U.P. & others; Civil Misc. Writ Petition No. 71210 of 2005 decided on 12th August, 2009.
This Court may record that any subsequent amendments made in the Rules, 1978 altering the minimum essential qualifications will not improve the case of respondent no.4, who on the date of selection/appointment was not eligible for the post as per the statutory rules applicable then.
For the reasons recorded above, the impugned orders dated 23rd October, 2002 and dated 24th October, 2002 cannot be legally sustained and are hereby quashed. The present writ petition is allowed.
(Arun Tandon, J.) Order Date :- 22.12.2010 Sushil/-